Citation Nr: 0419553
Decision Date: 07/20/04 Archive Date: 08/04/04
DOCKET NO. 01-00 388 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for the post-operative
residuals of an atrial septal defect.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran served on active duty from January 1977 to
December 1977; he also served in a reserve capacity from
October 1976 to January 1977.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Oakland, California.
In January 2003, a hearing on appeal was held in Oakland,
California, before the undersigned, who is the Veterans Law
Judge designated by the Chairman to conduct that hearing. 38
U.S.C.A. § 7107(c) (West 2002). A transcript of the hearing
is of record. Following that hearing, the Board remanded the
claim to the RO for the purpose of obtaining a medical
opinion concerning the etiology of the veteran's current
cardiac disorder. Said information was obtained and the
claim has since been returned to the Board for review.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the issue on appeal has been developed.
2. The service medical records are negative for findings
indicating that the veteran had an atrial septal defect.
3. Medical evidence etiologically linking the atrial septal
defect with the veteran's military service has not been
presented.
CONCLUSION OF LAW
An atrial septal defect was not incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38
C.F.R. § 3.303 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In November 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA). See, 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). In particular, this
law redefines the obligations of VA with respect to the duty
to notify and to assist. This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
but not yet final as of that date. VCAA, Pub. L. No.
106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2001),
38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions) (West 2002). See also, 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a) (2003).
With respect to the appellant's claim, VA's duties have been
fulfilled to the extent possible. VA must notify the veteran
of evidence and information necessary to substantiate the
claim and inform him whether he or VA bears the burden of
producing or obtaining that evidence or information. 38
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran
was notified of the information necessary to substantiate his
claim by means of the discussions in the original rating
decision, the statement of the case (SOC), and the
supplemental statement of the case (SSOC). Specifically, in
those documents, the appellant has been told that he needed
to submit evidence supporting his assertions that either his
cardiac disability began while he was in service or,
alternatively, that a possibly pre-existing cardiac condition
was aggravated by his military service.
VA informed the appellant of which evidence he was to provide
to VA and which evidence VA would attempt to obtain on his
behalf. In this regard, the VA sent the appellant notice of
the VCAA in June 2003, which spelled out the requirements of
the VCAA and what the VA would do to assist the veteran. The
VA also informed the appellant that it would request records
and other evidence, but that it was the appellant's
responsibility to ensure that the VA received the records.
Additionally, in order to ensure that an adequate evaluation
of the veteran's disability was procured and before the VA,
the veteran underwent a cardiac examination in July 2003.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002). Here, the RO obtained
the veteran's available medical treatment records. The
veteran was also provided a recent medical examination in
order to assess the severity and etiology of disability at
issue. Moreover, the veteran was given the opportunity to
present evidence and testimony before the Board. It seems
clear that the VA has given the veteran every opportunity to
express his opinions with respect to his claim; the VA has
obtained all known documents that would substantiate the
veteran's assertions; and, the veteran has undergone an
examination so that the VA would have a complete picture of
the veteran's heart disability.
The Board notes that the VCAA notification letters sent to
the veteran properly notified him of his statutory rights.
See Paralyzed Veterans of America, et. al. v. Secretary of
Department of Veterans Affairs (PVA), 345 F.3d 1334 (Fed.
Cir. 2003); Disabled American Veterans, et. al. v. Secretary
of Department of Veterans Affairs (DAV), 327 F.3d 1339 (Fed.
Cir. 2003). An amendment to the VCAA was recently enacted
clarifying that the one-year period within which evidence may
be submitted does not prohibit VA from making a decision on a
claim before expiration of that time period. Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat.
2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. §
____).
Also, in Pelegrini v. Principi, 17 Vet. App. 412 (2003), the
United States Court of Appeals for Veterans Claims (Court)
discussed the statutory requirement in 38 U.S.C.A. § 5103(a)
that VCAA notice be sent to a claimant before the initial
adjudication of his claim. Satisfying the strict letter
holding in Pelegrini would require the Board to dismiss every
case that did not absolutely meet these standards. Such an
action would render a rating decision promulgated prior to
providing the veteran full VCAA notice void ab initio, which
in turn would nullify the notice of disagreement and
substantive appeal filed by the veteran. In other words,
strictly following Pelegrini would require that the entire
rating process be reinitiated from the very beginning. That
is, the claimant would be provided VCAA notice and an
appropriate amount of time to respond before an initial
rating action. Following the rating decision, the claimant
would have to file a new notice of disagreement, a new
statement of the case would be required, and finally, the
submission of a new substantive appeal by the claimant. The
prior actions of the veteran would be nullified by a strict
reading of Pelegrini, and essentially place the appellant at
the end of the line of cases waiting to be adjudicated.
There is no statutory authority that renders the initial
adjudication of the veteran's claim null and void because of
lack of strict VCAA compliance. Furthermore, the Board does
not believe that voiding the rating decisions is in this
veteran's best interests. Simply put, in this case, the
claimant was provided every opportunity to submit evidence,
and to attend a hearing at the RO before a hearing officer or
before a Veterans Law Judge at the RO or in Washington, D.C.
He was provided with notice of the appropriate law and
regulations. He was provided notice of what evidence he
needed to submit, and notice of what evidence VA would secure
on his behalf. He was given ample time to respond. The
veteran was not prejudiced because he does not, as the Court
noted in Pelegrini, have to "overcome an adverse
determination." There is no final adverse determination of
his claim. The Board does a de novo review of the evidence
and is not bound by the RO's prior conclusions in this
matter.
Hence, not withstanding Pelegrini, to allow the appeal to
continue would not be prejudicial error to the claimant.
Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his
claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(strict adherence to requirements in the law does not dictate
an unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). Therefore, for these reasons, the Board finds
that the intent and purpose of the VCAA were satisfied by the
notice given to the veteran, and he was not prejudiced by any
defect in the timing of that notice.
Alternatively, the Board finds that any possible defect with
respect to the timing of the VCAA notice was harmless error.
While the notice provided to the appellant was not given
prior to the first agency of original jurisdiction (AOJ)
adjudication of the claim, the notice was provided by the AOJ
prior to the transfer and the second certification of the
appellant's case to the Board, and the content of the notice
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
(West 2002) and 38 C.F.R. § 3.159(b) (2003). As such, the
appellant has been provided with every opportunity to submit
evidence and argument in support of his claim, and to respond
to VA notices. Therefore, not withstanding Pelegrini, to
decide the appeal would not be prejudicial error to the
veteran.
The veteran maintains that service connection is warranted
for a cardiac disability. The veteran has been diagnosed as
having an atrial septal defect that has been treated.
Specifically, he contends that his heart condition either
began in or was aggravated by his military service.
Under 38 U.S.C.A. § 1110, 1131 (West 2002) and 38 C.F.R. §
3.303(b) (2003), service connection may be awarded for a
"chronic" condition when: (1) a chronic disease manifests
itself and is identified as such in service (or within the
presumption period under 38 C.F.R. § 3.307) and the veteran
presently has the same condition; or (2) a disease manifests
itself during service (or during the presumptive period), but
is not identified until later, and there is a showing of
continuity of related symptomatology after discharge, and
medical evidence relates that symptomatology to the veteran's
present condition. Savage v Gober, 10 Vet. App. 488, 495-98
(1997).
To grant service connection, it is required that the evidence
shows the existence of a current disability, an in-service
disease or injury, and a link between the disability and the
in-service disease or injury. Watson v. Brown, 4 Vet. App.
309, 314 (1993). This principle has been repeatedly
reaffirmed by the United States Court of Appeals for the
Federal Circuit, which has stated that ". . . a veteran
seeking disability benefits must establish . . . the
existence of a disability [and] a connection between the
veteran's service and the disability." Boyer v. West, 210
F.3d 1351, 1353 (Fed.Cir. 2000).
The veteran's service medical records do not show treatment
for or findings indicative of a cardiac disability, disorder,
or disease. They do show treatment for bronchial asthma but
there is no indication that such a condition was anything but
acute and transitory. A review of the veteran's discharge
examination report fails to reveal a diagnosis or findings
indicative of a heart disability, to include atrial septic
defect. While the discharge examination report does indicate
that the veteran suffers from asthma and seasonal sinusitis,
that same report does not insinuate that either condition
affected the veteran's heart.
The record reflects that the veteran submitted records of
treatment from his private physicians. These records stem
from 1998 to the present. Said records include
echocardiogram studies, private physical examination records,
and numerous treatment records. Although the reports and
test results do show that the veteran has been diagnosed with
a bronchial disability and a heart condition, those same
records do not etiologically link the two disorders, and they
do not suggest or insinuate that either began in or was
aggravated by the veteran's military service. The Board
notes that one of the veteran's physicians, M. K. Serio,
M.D., Chief of Cardiology of the University of California at
San Francisco Medical Center, specifically opined that the
veteran's atrial septal defect was congenital in nature. Dr.
Serio did not link the condition with any other physical
disability.
To support his claim, the veteran has submitted written
statements to the VA. He also proffered testimony before the
Board in January 2003. During that hearing, the veteran
claimed that his asthma disorder was misdiagnosed while he
was in service and that his military service adversely
affected his possibly pre-existing heart disorder. He
further suggested that the military doctors who treated him
for asthma were incorrect in diagnosing just asthma and that
they should have discovered that he had the atrial defect.
He was not medically specific as to how his asthma disability
caused his cardiac disability; he only offered conjecture.
The veteran underwent a VA medical examination in July 2003.
The veteran related to the doctor that all throughout his
military career he (the veteran) had difficulty in performing
athletic-type events. He claimed that while he was in
service he was diagnosed as having a "heart condition."
Nevertheless, the veteran admitted that from 1977 until 1991,
he was not specifically treated for a heart disorder. In
1991, he suffered a stroke; then in 1998 he experienced
another stroke at which he was found to have an atrial septal
defect and a prolapsed mitral valve. The atrial septal
defect was repaired in 1998.
After a review of the veteran's claims folder, including his
medical records, the examiner provided the following
comments:
This patient has cardiac disability at
the present time . . . Atrial septal
defect type II is a congenital lesion in
almost all cases and likely is in his
case as well. This patient was
symptomatic prior to joining the service
with regard to the ability to run. He
was symptomatic after the service in a
similar manner, without a significant
change in his shortness of breath during
service, therefore there likely was no
significant change in his underlying
cardiovascular condition during service
although this patient's atrial septal
defect likely was symptomatic while in
the service causing him shortness of
breath and probably cough, which was
likely attributed erroneously to asthma.
Therefore, while this patient did have
cardiovascular disability in service, it
is likely this disability preexisted his
veteran's military service and it is
likely that there was temporary
aggravation of this patient's medical
condition related to the performance of
very heavy physical exertion in service,
given that he was laboring with an atrial
shunt at that time. . . .
Notwithstanding the assertions made by the VA physician and
the lack of other supporting medical evidence, the veteran
has continued to assert that he suffers from a cardiac
disability somehow related to his military service.
Unfortunately, the veteran's assertions are the only positive
evidence in support of his claim. That is, the claims folder
is negative for any medical evidence, either from a private
or a VA physician, which would relate the veteran's current
disability with the veteran's military service. Moreover,
the same evidence is silent as to any etiologically link
between the veteran's asthma, the atrial septal defect, and
the veteran's service.
Hence, the Board is left with the contentions made by the
veteran. These statements were undoubtedly made in good
faith; however, the veteran is not a doctor nor has he
undergone medical training. A lay person is not competent to
make a medical diagnosis or to relate a medical disorder to a
specific cause. However, that same lay person is competent
to provide evidence on the occurrence of observable symptoms
during and following service. If the claimed disability is
manifested by observable symptoms, lay evidence of
symptomatology may be adequate to show the nexus between the
current disability and the in-service disease or injury.
Nevertheless, medical evidence is required to show a
relationship between the reported symptomatology and the
current disability, unless the relationship is one to which a
lay person's observations are competent. See Savage v.
Gober, 10 Vet. App. 488 (1997).
In this instance, the veteran is competent to say that that
he may be suffering from manifestations or symptoms related
to an atrial septal defect. However, he is not competent to
say that he has an actual disability that is related to his
service or a service-connected disability. He is not
competent to say that the atrial septal defect that possibly
existed prior to his military service was aggravated by his
military service. In other words, there is no indication
that he possesses the requisite medical knowledge or
education to render a probative opinion involving medical
diagnosis or medical causation. See Edenfield v. Brown, 8
Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In determining whether service connection is warranted, the
VA must determine whether the evidence supports the claim or
is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case service connection must be
denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). While it is true that the
veteran now suffers from the residuals of an atrial septal
defect that has been repaired, medical evidence positively
and conclusively etiologically linking this disability with
the veteran's military service or a service-connected
disability has not been presented. Moreover, there is no
evidence showing that the current disability began while the
veteran was in service. Also, there is no evidence
indicating that the condition was somehow aggravated by his
military service. Instead, the evidence indicates that the
veteran's atrial septal defect was not diagnosed until
twenty-one years after the veteran was discharged from the
service. The evidence in this case is not so evenly balanced
so as to allow application of the benefit of the doubt rule.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2003).
The veteran's claim is thus denied.
ORDER
Service connection for the post-operative residuals of an
atrial septal defect is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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